Federal Circuit Filters Out Late Argument

Although the PTAB granted Google’s IPR petition, it ultimately concluded that Google had failed to prove the challenged claims unpatentable. On appeal, the Federal Circuit has affirmed. U.S. Patent No. 6,772,114; IPR2017-00437.

The non-precedential decision includes an interesting bit on PTAB procedure. The IPR was instituted on both obviousness and anticipation grounds. During the trial briefing Google shifted obviousness theory. In particular, Google began to argue that the claimed high-pass-filter element would have been obvious. This was a change because Google had previously argued that the filter was disclosed in the cited art. Note here that Google did not present this argument until the reply-brief stage. At that point, the Board refused to consider the argument because it was raised at such a late stage and that Philips “did not have a fair and meaningful opportunity to respond.”

On appeal, the Federal Circuit has affirmed — holding that the “Board was within its discretion in declining to consider this obviousness theory that was outside the scope of the petition for inter partes review.”

Claim at issues relate to splitting an audio transmission into high and low frequency portions and then separately filtering them for noise. Because the human ear does not distinguish high-frequency sounds as well, a computationally cheaper filter works well.

10. A transmission system, comprising:

a transmitter including

a splitter for splitting up a transmission signal into a low frequency signal within a low frequency range and a high frequency signal within a high frequency range, the low frequency range being lower than the high frequency range,

a first coder for deriving a first coded signal within the first frequency range from the low frequency signal, and

a second coder for deriving a second coded signal within the high frequency range from the high frequency signal;

a receiver in electrical communication with said transmitter to receive the first coded signal and the second coded signal, said receiver including

a first decoder for sequentially applying a narrow-band decoder,

an up-sampler and

a low-pass filter to the first coded signal to generate a first reconstructed signal within the first frequency range, and

a second decoder,

wherein, based on the second coded signal, said second decoder sequentially applies

a high-pass filter,

a LPC synthesis filter and

an amplifier to a noise signal to generate the second reconstructed signal.

Where are you seeing this in the data? I see that the total number of U.S. apps filed was down last year, year-over-year, but I do not see anything about breaking the total U.S. filings out by country of origin.

Alright, now I see it. If one looks in Table A19 (pg. 46) of the 2018 WIPO statistics, one sees that 293,904 U.S. origin applications were filed in the USPTO in 2017, while Table A19 (pg. 33) of the 2019 statistics shows that 285,095 U.S. origin apps were filed in the USPTO in 2018. A decline of ~3% year-over-year.

Just for $#!+s and giggles I decided to check the 2017 stats as well. There, table A19 shows that 295,327 apps were filed in 2016. Therefore, the 2018 statistics represent a ~0.5% decline year-over-year.

In other words, that is at least two years of U.S. origin filings declining at the USPTO. I do not care enough to keep researching to see how far back this trend goes. In any event, Night Writer is definitely correct. According to the WIPO data, U.S. origin filings at the USPTO have been declining over the last few years, even as total filings keep growing.

Not only the point that you add here, Night Writer, but the data should be understood in light of Transnationals (merely nominally) labeled as “US” that have NO actual US constraint or alignment with US Sovereign interests.

Patent law was, is, and ever shall be first and foremost a Sovereign-Centric law. Sure, we have treaties — for comity reasons; but it is entirely correct that an “America First” paradigm is at the foundation of our Sovereign’s patent system.